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Immigration judges call for reform

WASHINGTON -- Leaders of the National Association of Immigration Judges called Wednesday for Congress to separate immigration courts from the Department of Justice and create an independent court system.

WASHINGTON — Leaders of the National Association of Immigration Judges called Wednesday for Congress to separate immigration courts from the Department of Justice and create an independent court system that is not tied to a law enforcement agency.

Immigration courts currently are under the Justice Department's jurisdiction and the judges are appointed by the attorney general — the nation's top prosecutor.

Immigration judges cannot hold federal prosecutors from the Department of Homeland Security in contempt of court because the judges are considered to be lawyers working for the Justice Department, the judges said.

"We need an independent immigration court system which stands on its own," said Judge Dana Leigh Marks, a San Francisco-based immigration judge and president of the National Association of Immigration Judges. "Enforcement should not be allowed to control courts."

A spokeswoman for the Justice Department said the department believes the immigration court system should remain within the department.

"The type of civil administrative law cases that the immigration court deals with are designed to be handled within the Department of Justice," said Lauren Alder Reid, counsel for legislative and public affairs with the Executive Office for Immigration Review at the Department of Justice. "It would take significant resources to re-create a court system that is outside of the department."

But the judges said that the system is not fair to anyone, especially to immigrants who cannot afford an attorney to represent them and have the burden of proof to show why they should be allowed to stay in the United States.

There is no constitutional right to a government-appointed attorney in civil cases. More than 40% of the immigrants who came before immigration judges last year did not have an attorney, Marks said at a news conference at the National Press Club.

Marks said she and Miami-based immigration Judge Denise Noonan Slavin, executive vice president of the judges' association, have been meeting with members of Congress and their staffs to try to convince them of the need to overhaul the court system.

The American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association and other groups support the change, Slavin said.

The two judges said they are not sure how much the change would cost, but they believe a more independent system would lead to fewer appeals to higher courts and the extra cost that entails.

Marks said the severely overburdened immigration courts need at least twice the number of judges they have now. There are 242 immigration judges, which include 227 field judges who hear cases and 15 judges who do mainly administrative work.

Recent proposals by the White House and members of Congress would add somewhere between 40 and 100 judges to the court system, which faces 375,000 pending cases. An immigration reform bill passed by the Senate last year would have doubled the number of immigration court judges, but that bill has died in the House.

"I have over 2,400 pending cases," Marks said. "I shouldn't have to say to people: 'You're ready to go now, but my first date on the docket is three and a half years from now.' "

Marks and Slavin decried efforts by the Obama administration and Congress to respond to the recent surge of Central American children crossing the U.S. border by rushing the children through the court system or sending them home without giving them a chance to make their case in court for asylum or other relief.

The Justice Department is moving the children's cases to the front of the court docket to try to get a quick result. But that doesn't make sense in many cases where the children's parents are already in the United States awaiting court hearings of their own, Slavin said.

The children also are often unprepared for court because they haven't had time to be reunited with family members or responsible adults who could help them find attorneys to represent them, Marks said.

About 63,000 unaccompanied children have crossed the Southwest border since October 2013. Many of them are from El Salvador, Guatemala and Honduras, which have been plagued by gang- and drug-related violence and record homicide rates in recent years.

Marks and Slavin said they oppose efforts to repeal a 2008 anti-trafficking law that bars the U.S. government from sending the children home without allowing them to have a court hearing.

"It seems only fair that people have the right to tell their story at least once to an immigration judge," Marks said.

Federal immigration judges are generally barred from speaking out on issues that affect their courts, but Marks and Slavin were able to speak to reporters Wednesday in their capacity as leaders of the judges' union.